On Friday, the United States Court of Appeals for the Sixth Circuit entered an order and opinion reinstating OSHA’s vaccine mandate for employers with 100 or more employees. Here’s a link to that opinion: Sixth Circuit Vaccine Mandate Opinion.
It’s too early to say what the ultimate outcome of this legal battle will be. At least ten interested parties have filed applications with the United States Supreme Court asking for an emergency stay of the OSHA mandate. Justice Brett Kavanaugh is responsible for ruling on those motions. He can stay the mandate on his own or refer the stay request to the Supreme Court as a whole. The Court has asked the Biden Administration to respond to the applications by December 30, 2021. Appellate experts expect a decision in January.
In the interim, OSHA took a quick victory-lap with an important Press Release on Friday. It stressed two important dates:
“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
So, if the Supreme Court takes no action in the near future, we know that these dates are important.
- January 10, 2022: This is the day OSHA will being enforcing all aspects of the vaccine mandate. Not sure what all of those requirements are? Here’s my original article discussing the general requirements of the OSHA mandate: OSHA Issues Vaccine Mandate for Private Employers. Employers who are making “reasonable, good faith efforts to come into compliance” will get a grace period for the testing requirement.
- February 9, 2022: The grace period expires. Presumably, OSHA will begin citing covered employers for noncompliance with the mandate.
I strongly recommend that employers prepare for the possibility that the OSHA mandate will survive the Supreme Court’s scrutiny. Most lawyers still think the odds are stacked against the mandate. But, you don’t want to be caught unprepared. At a bare minimum:
- Decide if you want to mandate vaccines for your employees — with no “test out” option. If that’s your course of action, download OSHA’s sample policy and start taking steps to implement. Here’s a link to that policy: OSHA Sample Policy Mandating Vaccination
- In the alternative, you can implement a policy allowing employees to mask and take weekly testing — instead of vaccinating. If that’s your plan, download OSHA’s sample policy and start taking steps to implement. Here’s a link to that policy: OSHA “Test Out” Policy
As always, stay tuned. More details are sure to come.